Jailed for Speech
A major First Amendment case is ignored by the
by Dave Lindorff
Extra magazine, March 2001 - FAIR
Something about the case of Pennsylvania death-row inmate
Mumia Abu-Jamal-the former Black Panther and progressive Philadelphia
journalist convicted in a highly controversial trial of killing
a white Philadelphia cop-seems to make judges and journalists
alike lose their basic sense of principle.
In an example of this peculiar phenomenon, C. Clark Kissinger,
a leading activist in the battle to win a new trial for Abu-Jamal,
was sentenced on December 6 to 90 days in the federal slammer
for the crime of speaking at an anti-death penalty rally during
the August GOP national convention.
In July 1999, Kissinger took part in a demonstration for Abu-Jamal
at the Liberty Bell, which is on display in a federal park in
downtown Philadelphia. Kissinger and dozens of other protesters
were arrested for "failure to obey an order to move"-a
minor, Class B misdemeanor. Most of those arrested pleaded guilty
or no contest at their arraignments and were released with token
fines. Kissinger and seven other activists, however, chose to
plead not guilty.
Federal Magistrate Arnold C. Rapoport -who tried the case
without a jury because the offense was so minor- found all the
defendants guilty. Then, in apparent punishment for daring to
seek redress in the courts, Rapoport imposed a one-year probation,
the terms of which seemed designed to limit the defendants' political
Specifically, Kissinger and the others were ordered not to
leave their home area-in Kissinger's case, New York City and Long
Island-without permission from their probation officers or the
judge. They were also ordered to surrender their passports, to
provide detailed financial information on a monthly basis, and
to avoid contact with "anyone convicted of a crime."
A11 this for an offense about as serious as a traffic violation.
Kissinger refused to submit to the judge's onerous reporting
requirements, which he said violated his (and his wife's) rights
to free association and privacy, but he did seek permission to
travel. He discovered that while non-political travel requests,
such as visits to his ailing mother, were routinely granted, permission
for political trips was routinely denied. Finally, when Rapoport
refused to allow him to speak at a legally permitted anti-death
penalty rally in Philadelphia's Center City during the Republican
National Convention, Kissinger went anyway and gave the speech.
Dangerous content | For that infraction, Kissinger's probation
office asked for a hearing to have L his probation revoked. Assistant
U.S. | Attorney Richard Goldberg, who prosecuted the case and
requested the 90- | day sentence, argued at the December 6 hearing
that the case was not about speech but simply about a probation
violation. The judge, however, made the reality very clear.
Judge Rapoport initially refused defense requests to explain
why he had denied Kissinger's request to travel to Philadelphia,
saying, "I denied it because I denied it," and later,
"Unfortunately, I don't have to explain it." But when
National Lawyers Guild attorney Andrew F. Erba pointed to a recent
appellate court decision that did require judges to explain probation
violation sentences, the judge's subsequent explanation made it
disturbingly clear that Kissinger's words were indeed precisely
what were at issue.
"Past behavior shows that his speech ends in civil disobedience,"
said Rapoport, adding combatively, "You want to know why?
There's your answer. Do you want to know anything else?"
Of course, Rapoport's rationale could just as easily have been
used to silence Martin Luther King, Mahatma Gandhi or Henry David
Despite the serious implications for freedom of speech and
movement- according to Kissinger attorney Ron Kuby, this was the
first time since World War II someone had gone to jail for giving
a speech-the story was apparently ignored by national mainstream
media. Even the Philadelphia Inquirer did nothing on the story.
The Inquirer can be a fierce defender of the First Amendment-when
its own rights are in jeopardy; the paper recently stepped up
to pay contempt fines of $100 per minute levied on two of its
writers by a local judge seeking their notes of an interview with
a murder suspect. But when a judge explicitly sentence a defendant
because of the political content of his speech, that apparently
wasn't even worth sending a reporter.
The Philadelphia Daily News (a tabloid owned, like the Inquirer,
by Knight-Ridder) did send a reporter to the hearing, whose article
ran the next day (12/7/00) under the inaccurate headline "Protesters
Disrupt Hearing." (The street-level protest referred to in
no way disrupted the fifth-floor hearing.) The story's lead focused
on the demonstrators, whom it referred to as "anti-death
penalty fans of convicted cop-killer Mumia Abu-Jamal," rather
than the more newsworthy event of a federal magistrate sentencing
someone to jail for a speech.
The Bull Connor precedent
Kissinger's supporters have called his treatment by Judge
Rapoport "Southern justice," and there is an ironic
truth to the charge. In a brief filed by the U.S. Attorney's office
in the U.S. Court of Appeals in Philadelphia, where Kissinger's
attorneys are trying to have his sentence and his probation overturned,
U.S. Attorney Michael Stiles chose to cite Walker v. Birmingham,
a 5 to 4 ruling by the U.S. Supreme Court upholding the right
of a city to ban demonstrations.
That case involved the famous 1963 Easter civil rights march
in Birmingham, Alabama, in which eight civil rights leaders were
arrested while other marchers were set upon by police dogs. The
ban on demonstrations had been ordered by the notorious Bull Connor,
whose name in the 1960s became synonymous with racist police behavior.
At least back in 1963 the world got to watch images on TV
of police dogs attacking peaceful protesters in Birmingham. At
this writing, Kissinger sits in a federal lockup in Manhattan,
and no one outside of Philadelphia who relies on the mainstream
press even knows he's there. (The Nation and In These Times, as
well as the Village Voice and Philadelphia's weekly City Paper,
have run short pieces on the case.)
Kissinger, writing from his cell, quoted Stiles' brief-which
says "Walker holds that Kissinger's constitutional challenges
to the sentence he violated are irrelevant"-and commented
acidly, 'We can only congratulate the U.S. attorney for grasping
the close parallels between the government's position and that
of Bull Connor."
Dave Lindorff, a Philadelphia-based journalist, is currently
working on a book on the Mumia Abu-Jamal case for Common Courage
Press. This article was researched with the help of a grant from
the Fund for Constitutional Government.